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28 November 2010

Note: The author,Nandita Saikia, has been involved in advising a number of organisations on the implications of the Copyright (Amendment) Bill, 2010. This is not intended to reflect the POV of any particular person/organisation/entity.

Current Copyright Law

Copyright comprises a bundle of exclusive rights which allow the copyright owner, inter alia, to reproduce a work, issue copies of it, communicate it to the public, and to authorise others to do so under Section 14, Copyright Act, 1957 (the “Act”). Under Section 51(a)(i), any person who exercises any of the rights of the copyright owner without his permission is considered to commit direct copyright infringement,and under Sections 14, 51(a)(ii), and 63 of the Act, a person who abets another to do so may be considered to have committed indirect copyright infringement.

The Indian copyright statute does not directly speak of indirect or secondary copyright infringement; however, the fact that it is recognised by the law may be inferred from various provisions of the Copyright Act, 1957. For example, Section 63 of the Act which deals with copyright infringement as a criminal offence stipulates that the abetment of copyright infringement could also be an offence; this would not be possible unless the law recognised secondary infringement of copyright.

Further, Section 51(a)(ii) of the Copyright Act states that ‘copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright’.

Although Section 51(a)(ii) has traditionally been equated with the “Hall Owner’s Right”, it has, in recent times, come to be interpreted so as to have a website fall within the scope of a “place” as contemplated by the provision. In recent times, this provision has been used both by rights owners to attempt to pin liability on Internet and Online Service Providers (ISPs/OSPs) and by ISPs/OSPs to escape liability by proving that they had no knowledge of the infringing activity allegedly taking place on their websites.

Unfortunately, it has been necessary to primarily rely on Avnish Bajaj v. State of Delhi to understand what the law is. This case dealt with the issue of awareness although it was in the context of obscene content being uploaded on to a website, and not in the context of copyright infringement.

Proposed Copyright Law

There is no provision in the Indian Copyright Act which is analogous to Title II of the US Digital Millennium Copyright Act, 1996 (i.e. the Online Copyright Infringement Liability Limitation Act, contained in Section 512 of Title 17, USC) which creates a “Safe Harbour” for the benefit of ISPs/OSPs and protects them in situations where copyright infringement is committed by third parties on their websites.

However, the Copyright (Amendment) Bill, 2010, attempts to remedy this by effectively novating Sections 52(1)(b) and 52(1)(c) of the Copyright Act, 1957. The proposed provisions would protect websites like YouTube and Yahoo! from copyright infringement allegations in relation to User Generated Content including content uploaded by users such as film songs and other such similar content which are not owned by those who upload them.

The safe harbour proposed to be established is structured as follows: firstly, it is proposed to incorporate a provision in Section 52(1)(b) which would state that “the transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not constitute copyright infringement.

In addition to this, it has been proposed to include, vide amendments in respect of Section 52(1)(c), provisions which would state that the “transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” would also not constitute copyright infringement. Further, once allegedly infringing material is taken down pursuant to a takedown notes, the person who has taken it down may require the issuer of the takedown notice to produce an order from a competent court within 14 days for continued takedown.

There appear to be a few anomalies and causes for concern in the proposed Sections. Firstly, Section 52(1)(b) does not contemplate the issue of takedown notices. It is unclear why this is the case, and a fear from the point of view of rights owners is that this lacuna could have the effect of creating an unchallengeable safe harbour for OSPs/ISPs. Secondly, from the point of view of OSPs/ISPs, the use of the words “transient and incidental storage” may significantly reduce the scope of the Section, and therefore, from their point of view, the words “transient or incidental storage” should be used instead.

The proposed Section 52(1)(c) too has reason to cause concern to both copyright owners and OSPs/ISPs. From the point of view of rights owners, the period of 14 days to obtain an order from a competent court for continued takedown of purportedly infringing material may be too short considering ground realities. It may therefore be advisable to lengthen the time-period. Secondly, of concern to OSPs/ISPs is the fact that the proposed Section allows any person to send a takedown notice in respect of allegedly infringing material. This could mean that if a rights owner was so minded, he might be able to orchestrate indefinite takedown of allegedly infringing content by having a numbers of seemingly unconnected persons send a series of takedown notices.

Parliamentary Standing Committee

The Copyright (Amendment) Bill, 2010 was referred to a Parliamentary Standing Committee (PSC) for its recommendations. The PSC presented its report to the Parliament on November 23, 2010.

Despite the fact that the music industry was vehemently opposed to the incorporation of the proposed amendments, with Saregama RPG Enterprises going so far as to aver that, “the amendments in section 52 (1)(a), (b) and (c) will prove to be a God-sent opportunity to pirates to falsely plead that music files illegally stored by them on their computers, mobile phones etc. are for their private or personal use or for criticism or review,” the PSC chose to to endorse the creation of a safe harbour to protect ISPs/OSPs under Indian copyright law.

Among other stakeholders whose opinions were noted by the PSC in its report were various intermediaries, the Indian Broadcasting Federation (IBF), the Indian Motion Picture Producers Association, the Authors Guild of India, and the Business Software Alliance. The ISPs/OSPs (eBay, Google and Yahoo) were, not surprisingly, in favour of the proposed amendments and, in fact, suggested that they be further strengthened in their fair by (a) facilitating the exemption of intermediaries from liability in case of not just 'transient and incidental' storage of allegedly infringing material but also in case of 'transient or incidental' storage of such material, (b) specifically including 'areas such as search, hosting, information retrieval and caching' within the scope of the safe harbour, (c) specifying that 'an ISP will be liable only if it has knowledge of the infringing activity and has failed to remove the infringing material on receiving notice from the concerned content owner or if it induces, causes or material contributes to the infringing conduct of another ', (d) specifying 'the extent and parameters of ISP liability otherwise every ISP is subject to unlimited liability for third party actions ' particularly to ensure that they are not 'held responsible for words, pictures and videos they did not create, (e) requiring that an effective Notice and Takedown (NTD) mechanism be followed , (f) ensuring that ISPs were not faced with criminal liability in case of infringement, (g) ensuring that the fair dealing provision be updated 'to keep in pace with Indian Court decisions and international developments for flexibility in interpreting fair dealing principles '.

The IBF suggested that the 14 day period provided to a copyright owner for obtaining a court order for continued take-down of allegedly infringing material be made a 90 day period. The BSA and the IMPA also had reservations about the 14 day period, with the IMPA stating that it would impose 'an additional burden on owner of copyright'.

The Author's Guild, however, appeared to go a step beyond the OSPs/ISPs themselves, and suggested that the proposed sections be given a retrospective effect. It also suggested that 'the procedure for preventing storage of a work … be made simpler rather than asking the author to obtain order from the competent court'.

After taking into consideration the opinions of various stakeholders, the PSC recommended that (a) the 14-day period for obtaining a court order for continued take-down of infringing material be reviewed, and (b) that the words "transient and incidental" in the proposed provisions be substituted with the words "transient or incidental".

Information Technology Law

In addition to provisions in the Copyright Act, it is pertinent to note that Sections 79 and 81 of the Information Technology Act, 2000, (the “IT Act”) are relevant in deciding the issue of the liability of ISPs/OSPs for copyright infringement, if any. In fact, the Copyright Act does not even define either an OSP or an ISP, much less differentiate between the two. And it is therefore necessary to refer to the umbrella definition of an “intermediary” under Section 2(w) of the IT Act which covers both ISPs and OSPs. This definition states:

"intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

Further, for the purpose of deciphering law relating to take down notices (used by copyright owners to have material taken down from websites), it is necessary to refer to Section 79 of the IT Act.

To determine liability for copyright infringement, it has been observed that arguments tend to hinge on the interpretation of Sections 79 and 81 of the IT Act. Unfortunately, these provisions are extremely unclear and appear to conflict. Section 79 deals with the exemption from liability of intermediary in certain cases “notwithstanding anything contained in any law for the time being in force”, while Section 81 states: “The provisions of this [IT] Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970.”

The fact that both Sections 79 and 81 contain non obstante clauses has made it extremely difficult to interpret the two Sections harmoniously, to pinpoint which Section supersedes the other, and to understand what the law on the subject is. In all probability, the law will continue to be extremely unclear till the two cases filed by SCIL against Yahoo! and MySpace are conclusively adjudicated.

However, if the amendments proposed in the Copyright (Amendment) Bill, 2010, regarding OSP/ISP liability are accepted, the position Indian law takes with respect to the liability of intermediaries with respect to copyright infringement is likely to become far more clear.

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